Chapter 2

Preliminary provisions (Part 1 of the Act)

Status of the common law under the Act

2.3Sections 10 and 12 read:

10 Interpretation of Act

(1) This Act—

(a) must be interpreted in a way that promotes its purpose and principles; and(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with—

(i) its provisions; and(ii) the promotion of its purpose and its principles; and(iii) the application of the rule in section 12.

(2) Subsection (1) does not affect the application of the Interpretation Act 1999 to this Act.

12 Evidential matters not provided for

If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence—

(a) must be made having regard to the purpose and the principles set out in sections 6, 7, and 8; and(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

2.4There is a question whether there is a need for greater certainty about the status of the common law under the Act. The question has arisen because of a handful of cases where the common law has been employed in a way that, arguably, is not anticipated by these provisions.

Development of the Evidence Code

2.5 The terms of reference for the Law Commission’s review of the law of evidence asked it to examine evidence law to “make recommendations for its reform with a view to codification”. In its Preliminary Papers Principles for Reform and Codification, the Law Commission stated its intention to recommend the “true” codification of evidence law.32 It noted that the term “codification” had been accorded a number of meanings. The Law Commission adopted the term to mean the development of a set of rules that were “comprehensive, systematic in structure [and] pre-emptive of the common law”.33 Pre-emptive of the common law meant a code that “displace[d] all other law in its subject area, save only that which the code excepts” and that it should “supersede existing law and make a fresh start.”34 So that reference to previous judicial decisions would not obstruct the objective of codification, the Law Commission suggested that “any ambiguity in the meaning of a provision of the code must be resolved by reference to the policies and principles of the code rather than to the pre-existing common law.”35

2.6 In its report, the Law Commission confirmed its recommendation for an Evidence Code that would “replace most of the existing common law and statutory provisions on the admissibility and use of evidence in court proceedings.”36

2.7Sections 10 and 12 (in a different form to the enacted provisions) were proposed as aids to the interpretation of the Code.

2.8In the course of its review, the Law Commission considered four relevant points about the interpretation of the Code discussed below.37

A Interpretation according to its principles and purpose

2.9In its preliminary papers the Law Commission considered whether there was a need for a provision to the effect that:38

This Code should be liberally construed to secure its purpose and is not subject to the rule that statutes in derogation of the common law shall be strictly construed.

2.10Such a provision had been proposed for the draft Canadian code.39 The rule of strict construction of statutes in derogation of the common law meant that courts had to be careful not to extend Acts beyond the clear intent of the legislature and gave effect to a presumption against an intention to change existing law except by express terms. Inclusion of a provision such as the one above would signal, instead, that the statute was to be construed liberally according to its purpose.

2.11Initially, the Law Commission considered that there was no need for such a provision. It felt that it was doubtful whether the rule of strict construction of statutes in derogation of the common law applied in New Zealand. It also considered that the Code would be clear that it was its policies and principles to which the court should turn for interpretation. Furthermore, the (then) Acts Interpretation Act 1924 provided adequately for a purposive approach to interpretation.40

2.12However, in its final report the Law Commission recommended the inclusion of the following provision:

10 Code to be liberally construed

This Code is to be liberally construed in such a way as to promote its purpose and principles and is not subject to any rule that statutes in derogation of the common law should be strictly construed.

2.13The Law Commission concluded that s 10 was in fact necessary as “consultations indicated that a lifetime of training has ingrained into both bench and bar an almost automatic reaction of referring to case law to resolve evidential issues. Accordingly … s 10 [is] a necessary reminder that the Code should be construed by reference to its purpose and principles, rather than … the common law.”41

2.14The Law Commission also proposed the inclusion of s 11 (inherent and implied powers not affected) on the grounds that it was impossible to foresee all the ways the courts will need to use their powers to regulate procedure and prevent abuse of process. At the same time, its Evidence Code would become meaningless and ineffectual if the courts used their inherent powers in ways that contradicted the Code’s express provisions. Section 11 was drafted with the intent of preserving a court’s freedom of action so long as it was not exercised contrary to the Code’s express provisions.42

B Continuing scope for reference to the common law to inform the application of the Code

2.15In its preliminary paper Codification, the Law Commission noted that the focus on the principles and purpose of the Code was not intended to suggest that previous common law cases would never be of value. Since aspects of the Code would incorporate existing common law rules, the Code would, wherever appropriate, embody the wisdom and experience of the common law. There would, therefore, be a significant number of instances where the Code’s policies and principles would be the same as those underlying the common law. In those instances, it was anticipated that reference by the courts to earlier cases might be helpful in “elucidating the application of the principles contained in the Code”.43

2.16The Law Commission did not propose any provision to address this particular point. However, in its final report, it reiterated that “judges should look to the Code’s purpose for guidance on interpreting or applying the Code, rather than to the common law”.44

[T]he main function of the common law will … be illustrative rather than precedential in nature. Cases may be used to illustrate, for example, a set of circumstances that may show a hearsay statement to be reliable, but will not bind the court in its application of the Act.

C The problem of gaps

2.18Inevitably, there would be gaps in the Code. The Law Commission foresaw two kinds of gap:

Where developments, for example in technology, meant that some matters may not be provided for. In those circumstances the Law Commission thought that the gap should be filled by resort to the policies and principles as contained in the Code.

Where a topic was, by its nature, outside the scope of the Code. In those circumstances the common law would govern.

2.19In its preliminary papers, the Law Commission did not propose a “gap-filling” provision. Instead, it intended to deal with the problem by ensuring full codification. The Code was intended to be the authoritative source of evidence law. It also stated that the Code should be explicit about its intended field of application.

2.20 However, in its final report, the Law Commission proposed the inclusion of s 12 to deal with evidential matters not provided for. The provision, as it appeared in the Law Commission’s Evidence Code, did not make references to the common law. It stated:46

Evidential matters not provided for

Matters of evidence that are not provided for by this Code are to be determined consistently with the purpose and principles of this Code.

2.21Again, the Law Commission noted “[o]ne of the major features of a code is that it supersedes existing law and makes a fresh start. References to earlier judicial decisions can obstruct that objective.”47 The Law Commission reiterated that the general Code principles and purposes should apply to any “gaps” that are within the scope of the Code. In “any unprovided-for case”, therefore, the courts should look to the purpose and principles of the Code to resolve the matter.48 This statement and the heading to the provision tend to support a conclusion that the section was directed at the first type of gap referred to above, rather than the second. The proposed provision made it clear, however, that the Code was to be the source of law for “matters of evidence”. While the Law Commission did not provide any examples of the second type of gap, it must be inferred that it meant matters of law not relating to evidence.

D The status of the commentary

2.22In its preliminary papers, the Law Commission stated its intention to publish a detailed commentary, which, it was hoped, courts would draw upon as an aid to interpretation. In particular it noted that the commentary would make it clear that although comparisons with the previous law may be helpful, the ultimate determination of the provisions of the Evidence Code should be on the basis of the principles of the Code rather than the common law. In its final report, the Law Commission stated that the purpose of the commentary was to be “an authoritative guide to interpreting the Code”.49

2.23 The approach to interpretation described above was restated in the commentary.50

Differences between the Evidence Code and the Evidence Bill as introduced

2.24 Changes were made to ss 10 and 12 in the Bill as introduced. There is little record of the rationale for the alterations, or of whether it was anticipated that they altered the fundaments of the Law Commission’s proposals. Elisabeth McDonald and the authors of TheEvidence Act 2006: Act & Analysis note that all that is available on the point is contained in a briefing to the Minister stating that the “Bill adds reference to the status of the common law with respect to the Bill that did not appear in the Code. This was thought to be a helpful addition to aid interpretation”.51 The description of the provisions in the Departmental Report sheds little further light on the matter, although it appears to mirror the original intention of the Law Commission. With regard to cl 10 it states:52

Clause 10 sets out three rules for interpreting and applying the Act. Clause 10 provides that the Act should be interpreted consistently with clauses 6, 7, and 8 and that Judges may still have regard to the common law but only to the extent that is consistent with the Act. Clause 10 also provides that the Act is not subject to any rule that statutes in derogation of the common law must be interpreted narrowly.

The purpose of this clause is to provide the Act with some flexibility in cases where courts are faced with new developments in technology (say) which were not contemplated at the time the Act was drafted. The courts could give effect to these changes but only to the extent whereby the use of that technology was consistent with the purposes and principles of the Act.

2.26Commentators have stated that the effect of the open recognition of a continuing role for the common law in ss 10 and 12 is that, as enacted, the Act is no longer a code.54 As with other changes made between the Law Commission’s final recommendations and enactment, the amendments also leave the status of the Law Commission’s commentary unclear.

Parliamentary history

2.27There was no detailed parliamentary discussion of cls 10 and 12 during the passage of the Evidence Bill. There was also little discussion of whether the Bill was a code or what was meant by “codification”. Comments made by the members of the sub-committee of the Select Committee that considered the Bill suggest that there was no settled view.

2.28For example, in the first reading, Russell Fairbrother MP (chair of both committees) observed:55

I urge the select committee to make constant reference in its report to the Law Commission report, so that when the courts come to consider some of the changes in the bill they can go back to Parliament to ascertain its intention, and can hope that Parliament’s intention will reflect that of the Law Commission.

2.29Mr Fairbrother also referred to “the [Law Commission’s] draft code, which the bill very much reflects …”. In the second reading he stated: “it is not a codification of the law of evidence, but an attempt to bring into statute, in a clear, concise, and accessible way, the laws that must be followed.”56 Richard Worth MP (as he then was) responded:57

I understood him to say that this bill is not a codification of the law of evidence. It is substantially on that path, so I believe that the opportunity for judge-made law and other influences to intervene will be starkly limited by the passage of this legislation.

2.30During the third reading, Mr Finlayson said: “Some said that there was no need for a comprehensive code of the law of evidence. I happen to think that those people were totally wrong.” He went on, “clauses 10 and 12 … herald the major change in the law of evidence”.58

2.31There was greater discussion of these issues during the passage of the Evidence Amendment Bill which dealt with an issue in relation to co-conspirators.59 Importantly, in its report to the House on the Amendment Bill, the Select Committee stated:60

[W]e emphasise that the Evidence Act should be regarded as codification of the law of evidence in New Zealand. This amendment should not be seen as resiling from the purpose of the Act.

2.32 However, speeches in the House on the Amendment Bill were inconsistent in describing the problem the Bill sought to remedy. On one view, s 12A was necessary to prevent the co-conspirators rule being “removed from the statute book”.61 This view appeared to be endorsed by Mr Fairbrother who, in contrast to his earlier comments, observed that the committee were “careful to endeavour to codify the common law in the Evidence Act”. Mr Fairbrother “agree[d] that this bill should quickly go through so that when the Evidence Act comes into operation … it is complete”, and referred to the need to avoid “the effect of encouraging judges to go where they would naturally want to … the common law rather than to the statute.”62

2.33Mr Worth likewise said “[t]he Evidence Act sets out to codify the law of evidence. … It was a major undertaking to codify the law of evidence that was intended. ... It is intended that the Evidence Act be a code, and there are a number of indications of that intention in the statute … for example … sections 10 and 12.”63 Mr Worth also referred to the “desirability of maintaining in a stand-alone form, without the need to resort to extrinsic aids, a code of evidence.”

2.34The other view, which was put forward in the second reading, was that there was a “very respectable” argument based on ss 10 and 12 that s 12A was not needed since those provisions enabled the courts to say that the common law is still relevant.64 Each of the sub-committee members indicated that s 12A was required because of uncertainty in the import of s 12.

Current case law on sections 10 and 12

2.35 Four cases have given rise to concern about the way courts are interpreting ss 10 and 12. New Zealand Institute of Chartered Accountants v Clarke involved a question about the scope of the s 57 “privilege for settlement negotiations or mediation”.65 Keane J considered that the common law could be called upon to assist in determining what fell within the term “communication” in s 57(1).66 Relevant to this question was whether s 57(3) states exhaustively the exceptions to the privilege or whether that subsection in fact relates to the scope of the privilege. The authors of The Evidence Act 2006: Act & Analysis hold the former view: “The common law recognised other exceptions to the privilege. However, the effect of codification is that there is little room to argue for the continued existence of these earlier exceptions.”67 In Clarke, Keane J preferred the latter view, shared by the authors of Cross on Evidence.68 Keane J made three observations:69

… of course, the Act itself says that it is not a code and ss 10 and 11 [sic] allow the common law a definite place.

...

Section 10(1), which governs interpretation, sets the balance. The Act is the starting point and may well be the end point. It speaks for itself and is not to [be] read subject to the common law. If it speaks explicitly and completely there can be no resort to the common law. If it speaks less than definitively and completely there can and may need to be, but only insofar as the common law marches with the purposes, principles and letter of the Act.

…

Where an issue of admissibility cannot be resolved under the Act, or resolved completely, s 12 makes the common law a mandatory consideration, but in much the same way as s 10(1).

2.36He concluded that the common law has “a continuing place in setting the boundaries” of s 57. The common law could therefore be referred to in order to determine which elements of a “communication” were privileged and which were not. Reliance on the scope of the privilege as it was recognised at common law enabled Keane J to rule admissible the “peripheral features” of a letter (notably the fact that the writer had used the designation “CA” after his name) when the letter itself was subject to the s 57 privilege. Asher J employed s 10 for essentially the same purpose in Consolidated Alloys v Edging Systems (NZ) Ltd.70 In both cases, the judges considered that the interpretation supported by the common law was in keeping with the purpose of the privilege in s 57.

2.37In contrast, in Sheppard Industries Ltd v Specialized Bicycle Components Inc the Court of Appeal referred to s 57(3) as containing “exceptions” to the privilege, but stated that “[p]lainly, however, there are other recognised exceptions to the “without prejudice” rule. One is contained in s 67(1) of the Act ... In respect of other exceptions, however, resort must be had to the common law.”71 That observation is accompanied by a footnote that states:

Evidence Act 2006, s 12. There is no suggestion that Parliament considered that the exceptions not mentioned in ss 57(3) and 67 should no longer be available. See also … Clarke … where Keane J reached the same conclusion.

2.38The Court of Appeal, in fact, took a different route to Keane J in determining that s 57 is not a definitive statement of the privilege.

2.39The concern that arises in relation to ss 10 and 12 is the broad treatment of what amounts to a “gap” under s 12. On a broad reading of these cases, any pre-existing rule of common law not contained in the Act could be interpreted as a case where the Act does not “speak explicitly and completely”. However, reference to the pre-Act material does not support this approach. Doubt also must be cast on it given that Parliament felt the need to enact s 12A to preserve the common law co-conspirators rule, rather than relying on s 12 to fill this gap.

2.40One reading of these cases is that they seek to remedy a problem with s 57. This is best illustrated by Heath J’s comments in Jung v Templeton.72 He cites with approval the view in The Evidence Act 2006: Act & Analysis that it is important to inquire whether the material in question comes within the scope of the particular privilege in question. Where s 57 is concerned, the question is whether the privilege protects everything arising in the context of settlement negotiations / mediations, except in the situations in s 57(3), or whether there is still scope for the court to determine the breadth of terms such as “communication”.73 In Heath J’s view, s 57 as enacted leads to the former result. However, he is not sure whether that conclusion represents Parliament’s will or is an unintended consequence.

2.41The third case is New Zealand Air Line Pilots Association v Jetconnect Ltd (No 2) where the Chief Employment Court Judge made the following obiter observation:74

Although acknowledging that the Act is a code, it is arguable that “privilege” dealt with under the Evidence Act 2006 relates to exposure to criminal liability and the common law of privilege affecting claims to civil penalties may have been left untouched by Parliament.

2.42It could be inferred from this that the Act’s silence on any privilege against self-exposure to a non-criminal penalty means that it is a gap, at which s 12 is directed. However, it seems unlikely that a court giving direct consideration to this question could reach this outcome, given that Law Commission and parliamentary materials make it clear that the intention was to abrogate that privilege.75

2.43 The fourth and most problematic case is R v Fan.76 There, the question was whether the common law discretion to exclude evidence on the ground of unfairness has survived the enactment of the Act. The Court of Appeal concluded that s 30(5)(c) related only to the act of “obtaining” evidence unfairly, rather than to any broader general rule of fairness.77 Interpreted in that way, the “obtaining” by the police in Fan was fair.78 However, it then said:79

Nevertheless, it is necessary to look further to whether it was in fact the intention of the drafters of the Act to limit the consideration of unfairness only to the act of “obtaining”.

2.44In doing so it noted three post-Evidence Act cases where evidence had been excluded on the general ground of unfairness, but stated that those cases had not considered explicitly whether the general discretion survived the Act.80

2.45It also noted that the leading New Zealand texts on the Act “assume that the enactment of s 30 will make it difficult to argue that it is unfair to admit the evidence as distinct from arguing that it had been unfairly obtained”.81

2.46It then stated that there is nothing to indicate in any of the relevant Law Commission papers or reports an intention to exclude the common law discretion. The Law Commission’s report on Police Questioning is not cited in the footnote accompanying this observation.82 That report states:83

The improperly obtained evidence rule will be a strong prima facie rule of exclusion, with specific attention being drawn to breaches of the Bill of Rights Act. The courts’ ability to admit the evidence in the “interests of justice” means that they will not be required to take a rigid or technical approach to the admissibility of the evidence. In addition, the rationale behind the rule is clearly articulated: the rule provides for the exclusion of improperly obtained evidence.The lack of clarity in the guiding principles behind the current fairness discretion (ie, to exclude evidence on the ground of unfairness) has, therefore, been addressed by the proposed rule.

2.47Although it could have been stated more plainly, the italicised text indicates that any lack of clarity about the rationale for the rule was being cleared up by the proposed provision: that is that it would apply only to improperly obtained evidence. The Law Commission also stated that “the new rule replaces the fairness discretion”.84

2.48After describing ss 10, 11 and 12 of the Act, the Court in Fan, said:85

It would be inconsistent with the common law and the purpose of the Evidence Act which is to promote fairness to parties, to construe s 30 as excluding the common law discretion. The continued existence of the common law discretion is consistent with the purpose of promoting fairness in s 6(c) to parties, and the Court must have regard to that purpose under s 11(2). The exclusion of evidence on unfairness grounds can be seen as dealt with only “in part” (in terms of s 12) by s 30, so that decisions on the admission of evidence can still involve a consideration of what is fair to the parties, that is, irrespective of the provisions of s 30. We conclude that the common law discretion survives the Evidence Act, although s 30 governs those cases to which the section applies.

2.49There is an argument that the court misdirected itself. First, the court itself came to the conclusion that s 30 could not be interpreted as including general unfairness, instead of only unfairly obtained evidence. A contradictory interpretation of s 30 was therefore arguably barred by s 10(1)(c)(i). Second, the court interpreted s 30 as dealing with exclusion on unfairness grounds “in part (in terms of s 12)”. This conclusion is debatable since s 30 deals with improperly obtained evidence, rather than any general concept of unfairness. And, in any event, this is not the type of gap at which s 12 is targeted.

2.50Two other judicial statements arguably overstate the place of the common law under ss 10 and 12. One occurred in the District Court.86 The other was a Court of Appeal case, where it was said:87

Both are elements of the right to justice and to present a defence promised by ss 25(e) and 27 of the New Zealand Bill of Rights Act 1990, themselves reflecting the common law which continues to inform evidentiary decisions. [FN 18: Sections 10 and 12 of the Evidence Act.]

2.51To be weighed against the above examples are the cases where courts have made it clear that the provisions of the Act are to be the paramount consideration; and that the common law can only be considered under ss 10 and 12 to the extent that it is consistent with the purpose and principles of the Act.88

2.52In Mahomed v R the majority of the Supreme Court determined that ss 40 and 43 provided definitively for the admissibility of propensity evidence and made the following statement:89

We do not consider a great deal is now to be gained from an examination of pre-Evidence Act case law. The Act substantially codified that case law and it is preferable, and consistent with s 10(1), to focus firmly on the terms of the Act; albeit the application or interpretation of a particular provision in the Act may sometimes benefit from a consideration of the previous common law.

One of the expressed purposes of the Act is to help secure the just determination of proceedings by providing for facts to be established by the application of logical rules. Determining relevance is not, however, solely an exercise in pure logic. Experience and common sense play their part as well. The experience of the common law should not in this respect be completely ignored.

This view is supported by s 10 of the Act which provides guidance for the interpretation of the Act. First the Act must, as is conventional with all statutes, be interpreted in a way which promotes its purpose and principles. Secondly, the Act is not subject to any rule that statutes in derogation of the common law should be strictly construed. This point is a companion to the first and was presumably included to emphasise that the Act marked a new departure in the law of evidence and Judges should not interpret it restrictively on account of any hankering for the old common law or instinctive resistance to change. Thirdly, however, s 10 provides that the Act may be interpreted having regard to the common law, but only to the extent that the common law is consistent with its provisions, the promotion of its purpose and policies, and the application of the rule in s 12. That rule requires the common law to be taken into account, subject to stated conditions, if any evidential issue arises which the Act does not cover or covers only in part.

2.54The question for the Court in Wi was whether a lack of previous convictions could be relevant propensity evidence under s 40(1)(a).91 It determined that it could, drawing on the previous common law approach, which was consistent with “the way the Act should be interpreted” (ie presumably in accordance with its purpose and principles). The Court held that the common law “fortifies the appropriate construction of the Act.”92

2.55In R v Healy the Court of Appeal disagreed with the trial judge’s emphasis on former authorities when interpreting s 43 of the Evidence Act 2006:93

In our view, the words of the statute are the most helpful starting point in the propensity analysis and, to the extent that the decisions referred to above might be read as suggesting the starting point is a comparison with the common law or some judicial gloss on those words based on earlier authorities, we disagree.

...

… a focus on the relevant statutory provisions rather than the previous law is arguably consistent with the legislative history as we discuss below. … But, in any event, taking the statutory provisions as the starting point is correct as a matter of statutory interpretation and is consistent with the direction in s 10 of the Act to interpret the Act in a way that promotes its purpose and principles and with the further directions in s 10 that the Act:

(b) is not subject to any rule that statutes in derogation of the common law should be strictly construed; but

(c) may be interpreted having regard to the common law, but only to the extent that the common law is consistent with— (i) the provisions; and (ii) the promotion of its purpose and its principles; and (iii) the application of the rule in section 12.

An analysis which takes as its starting-point the wording of the propensity provisions is also consistent with more general principles of statutory interpretation. While the Evidence Act is not expressed as a complete code as was the Law Commission’s initial proposal … the following excerpt from Lord Herschell’s speech in The Governor and Company of the Bank of England v Vagliano Bros [1891] AC 107 at 144-145 (HL) is still helpful:

“I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”

...

In terms of the propensity provisions, having started with the Act it may occasionally be necessary in a particular case to refer back to the common law. But it has to be remembered that the Act is the product of a long and considerable history of reforms and that one of the objectives in terms of the law relating to propensity evidence was to reduce the previous uncertainty as to the likely approach to the admissibility of this sort of evidence. … However, the provisions relating to propensity evidence offer the opportunity of a clean slate in this area that should be grasped.

2.57The Court referred to the intentional change in terminology with the use of “propensity” and the Law Commission’s expressed wish to state the test “more definitively” as reinforcing the break with the pre-existing law. The approach in Healy was endorsed by the majority of the Court of Appeal in Vuletich v R95 and R v L96 in relation to s 43 and in R v X in relation to s 69 (confidential information).97

2.58In R v Barlien the Court of Appeal refused to use s 10 to correct an “illogical distinction” created by the definition of “statement” in s 4 and s 35 of the Act (relating to previous consistent statements).98 The Court said:99

We accept that, under s 10, the Act must be interpreted in a manner that promotes its purpose and principles, but this cannot override explicit exclusionary wording in the Act itself. It is also true that our interpretation leads to the exclusion of relevant evidence. The fundamental principle in s 7, that all relevant evidence is admissible, is, however, subject to an exception for evidence that is inadmissible under the Act.

Neither is it of assistance that the evidence would have been admissible at common law. Under s 10, the Act may be construed having regard to the common law but this is only to the extent that the common law is consistent with its provisions. Again this runs into the difficulty that the wording of s 35 is clear. No previous consistent statement is admissible except in two limited circumstances. That s 10 should not be given an expansive interpretation in the face of clear wording in the Act is backed up by the fact that it was considered necessary, in the face of the clear wording in s 27(1), to amend the Act by the introduction of s 12A in order to preserve the common law co-conspirators rule.

2.59It is worth noting that, in its postscript to the judgment, the Court of Appeal suggested that problems with s 35 needed to be addressed by the Law Commission. It made no reference to any suggestion that it was inhibited by or unclear on the position under s 10.

2.60 Finally, in Hart v R the Supreme Court considered s 10 and 12 again against the background of s 35.100 Elias CJ said:101

The Evidence Act 2006 is significant legislation which restates the principles upon which evidence is admitted in court proceedings and substantially reforms the pre-existing law. It is the first stop when questions of admissibility arise. And in many cases it will be the last stop. In interpretation of the Act and where the Act is silent on a question of admissibility, ss 10 and 12 permit recourse to the common law, provided the common law is consistent with the purpose and principles of the Act. In this case, turning on the admissibility of a previous consistent statement under s 35(2) of the Act, a topic of conceptually unsatisfactory case law at common law, care needs to be taken not to stray from the text and principles of the new Act.

...

… Care therefore needs to be taken to ensure that authorities under the former law, in which evidence of a previous consistent statement by a witness was excluded to meet the policies behind the exclusion of hearsay (and which have been largely overtaken in the reforms), do not distort the application of s 35.

2.61A similar observation was made by the other members of the court:102

These inherent difficulties support our view that in interpreting s 35(2) the Courts should not follow the general common law approach as to timing when that is not mandated by the statutory language.

2.62The paragraph contained the footnote “Indeed the Act is designed to make a break from the common law: see s 10”.

2.63For the sake of completeness, commentators have highlighted two other potential difficulties with the interpretation of s 10. First, they note that the requirement to interpret the Act in a way that promotes its purposes and principles does not present an easy task for judges. How, for example, in specific provisions should a judge balance “fairness to parties and witnesses” (s 6(c)) with “enhancing access to the law of evidence” (s 6(f)). Second, what does “have regard to” mean? The authors of the text consider that “the result will usually be a direct application of the common law”.103

General comment

2.64We agree with Elisabeth McDonald’s observation that it is difficult to see how the addition of references to the common law in either s 10 or s 12 was necessary, particularly if the principles in ss 6, 7 and 8 are applied in the interpretation of the Act.104 The addition of the references to the common law, particularly in the mandatory form contained in s 12, provides some invitation to judges either to adopt the approach that the Law Commission expressly sought to avoid – that is “an almost automatic reaction of referring to case law to resolve evidential issues” – or to place heightened reliance on the common law where it is thought it will do justice in a particular case or avoid a problem with a particular provision of the Act.

2.65However, on balance, we do not consider amendment to ss 10 and 12 to be necessary at this stage. First, for the most part, the courts have adopted an appropriate interpretation of s 10, and this interpretation has the support of the Supreme Court. Second, in most cases where the perceived problems have arisen with ss 10 and 12, this has been because the court has struggled with the interpretation of a substantive provision. In those cases, we consider that the difficulty lies primarily with the individual provisions themselves, such as s 57.105 Third, we do not consider that there has been enough judicial consideration of s 12 to assess the extent to which the provision might cause difficulties. Problems are most likely to arise in assessing what amounts to a “gap” under that provision. This is illustrated by the Fan case. Our impression is that, in that case, the Court used s 12 to seek to revive what it considers to be a useful pre-existing rule.

2.66In our view, close examination of the wording of s 12, alongside the Law Commission’s original recommendations, commentary and Select Committee materials illustrates clearly that s 12 was intended for the unforeseen case, rather than instances where a provision is silent on a previously existing rule of common law relating directly to evidence. However, one element of the wording of the provision (that it is to be employed where “the relevant provisions deal with that question only in part”) arguably invites courts to reintroduce aspects of admissibility rules on which the Act is silent. It must also be acknowledged that some parliamentary statements during the passage of the Evidence Amendment Act may have introduced some degree of confusion about the extent of the provision. As noted, however, the courts are most likely to use s 12 where a particular provision of the Act is not entirely clear on its face, and where the pre-Act materials are unhelpful.106 Again, then, the problem will arguably lie with the provision at hand, rather than s 12 itself.

2.67We remain of the view that a gap-filling provision for the unforeseen case is desirable. It may be that amendment to both ss 10 and 12, to return them to the form originally proposed by the Law Commission, for example, would serve a useful signalling purpose. However, courts have demonstrated a willingness to seek to revive common law rules in some circumstances, and it is clear that there are other routes for judges to employ pre-existing common law rules. As commentators have noted, the purpose and principles in ss 6–8 are sufficiently flexible to accommodate much of the common law.107 The same might be said of s 11.108 Changes to ss 10 and 12 would only result in the amendment of one of those routes. Instead, we prefer the retention of the current wording at this time. However, we propose to monitor these provisions and, if they continue to prove problematic, to consider them at the next five year review.

R1 We recommend that ss 10 and 12 be kept under review with any problems identified to be considered at the next five year review.

Inherent and implied powers not affected (1) The inherent and implied powers of a court are not affected by this Act, except to the extent that this Act provides otherwise. (2) Despite subsection (1), a court must have regard to the purpose and the principles set out in sections 6, 7, and 8 when exercising its inherent or implied powers as proposed by the Commission does not differ materially from the enacted version, set out above.

61(19 June 2007) 640 NZPD 9964. This view is shared by Pita Sharples (at 9968) and Christopher Finlayson (at 9969). This view was also articulated in Bruce Robertson (ed) Adams on Criminal Law – Evidence (online looseleaf ed, Brookers) at [EA12A.01], “As the Act originally stood, the prohibition in s 27(1) left no room for the operation of these common law exceptions.”

76Fan v R [2012] NZCA 114, [2012] 3 NZLR 29. See generally McDonald, above n 52, at 239–241. An order is in force prohibiting publication of the judgment and any part of the proceedings of the relevant case until final disposition of the trial.

77“For the purposes of this section, evidence is improperly obtained if it is obtained—(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or (b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or (c) unfairly.”

86See Police v Stevenson DC Waitakere CRN-0809-003-987, 26 November 2008 at [58] per Judge Burns: “… Insofar as ss.10(1)(c) and 12(b) are concerned, when a Judge has regard to, the common law, the result will usually be a direct application of the common law. This means that the Act cannot be described as a complete code. It is clear from ss.10 to 12 gives priority to the Act's purpose and principles, that does not provide a barrier to applications of the common law”.

88In addition to the cases described below, see R v Buddle [2011] DCR 347 at [42]: “Rather than set hard and fast rules excluding or including certain types of evidence, the new Act presupposes that a decision is to be made on the facts of each case, applying the principles in the Act. Given that the provisions of the Act are generally consistent with the common law in this particular area of propensity, the pre-Act cases continue to have some relevance (see s 10(1)(c) and s 12(b) of the Act). However, the provisions of the Act are the paramount consideration.” And Moffat v R [2009] NZCA 437, [2010] 1 NZLR 701 which related to the interpretation of s 42(1)(b): “A defendant in a criminal proceeding may offer propensity evidence about a co-defendant only if – (a) that evidence is relevant to a defence raised or proposed to be raised by the defendant; and (b) the Judge permits the defendant to do so.” Section 10 was used to justify a construction of paragraph (b) that accorded both with the fundamental purpose of the Act in s 7(3) and the pre-existing common law.

91“…[P]ropensity evidence … means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved”.

93R v Healy [2007] NZCA 451, (2007) 23 CRNZ 923 at [46], [48] (original emphasis). See also [49] “Section 12 deals with the situation where there is a lacuna because matters are not provided for in the Evidence Act or in any other enactment.”

95Vuletich v R [2010] NZCA 102 at [24], [27] per Glazebrook J and [96], [97] per Randerson J. Baragwanath J sought to devise a sliding scale for the application s 43 which was rejected by the other judges as an “unwarranted gloss on the statutory language”.

106In contrast, for example, Elias CJ has noted that the text, legislative history and purpose of s 35 made the provision clear so that recourse to s 10 or s 12 is not warranted. See Hart v R, above n 100, at [9]. See also Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23 at [8].

108See R v King [2009] NZCA 607, (2009) 24 CRNZ 527 and R v Felise (No 3) (2010) 24 CRNZ 533 (HC) for examples of cases where the court has found a means to allow evidence while acknowledging that such admission was precluded by s 21 of the Evidence Act.